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FIRST AMENDMENT IN FLUX: WHEN FREE SPEECH PROTECTIONS CAME UP AGAINST
THE RED SCARE  
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Jodie Childers
November 20, 2025
The Conversation
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_ As the Second Red Scare shows, when free speech is under attack,
strategic compliance may be useful for individuals. However, bold and
courageous acts of dissent are critical for protecting First Amendment
rights for everyone. _

Hollywood screenwriter Samuel Ornitz speaks before the House
Un-American Activities Committee in Washington, D.C., on Oct. 29,
1947., UPI/Bettmann Archive via Getty Images

 

As the United States faces increasing incidents of book banning
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and threats of governmental intervention
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– as seen in the temporary suspension of TV host Jimmy Kimmel
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– the common reflex for many who want to safeguard free expression
is to turn to the First Amendment
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free speech protections.

Yet, the First Amendment has not always been potent enough to protect
the right to speak. The Cold War presented one such moment in American
history, when the freedom of political expression collided with
paranoia over communist infiltration
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In 1947, the House Un-American Activities Committee
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directors
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to testify about their union membership and alleged communist
associations. Labeled the Hollywood Ten
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witnesses – Alvah Bessie, Herbert Biberman, Lester Cole, Edward
Dmytryk, Ring Lardner Jr., John Howard Lawson, Albert Maltz, Samuel
Ornitz, Adrian Scott and Dalton Trumbo – refused to answer questions
on First Amendment grounds. During his dramatic testimony, Lawson
proclaimed his intent “to fight for the Bill of Rights,” which he
argued the committee “was trying to destroy.”

They were all cited for contempt of Congress
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Eight were sentenced to a year in federal prison, and two received
six-month terms. Upon their release, they faced blacklisting in the
industry [[link removed]]. Some,
like writer Dalton Trumbo, temporarily left the country
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As a researcher focused on the cultural cold war
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I have examined the role the First Amendment played in the
anti-communist hearings during the 1940s and ’50s.

The conviction and incarceration of the Hollywood Ten left a chilling
effect on subsequent witnesses
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appear before congressional committees. It also established a period
of repression historians now refer to as the Second Red Scare
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Although the freedom of speech is enshrined in the Constitution and
prized by Americans, the story of the Second Red Scare shows that this
freedom is even more fragile than it may now seem.

The Fifth Amendment communists

After the 1947 hearings, the term “unfriendly
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label applied by the House Un-American Activities Committee and the
press to the Hollywood Ten and any witnesses who refused to cooperate
with the committee. These witnesses, who wanted to avoid the fate of
the Hollywood Ten, began to shift away from the First Amendment as a
legal strategy.

They chose instead to plead the Fifth Amendment
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grants people the right to protect themselves from self-incrimination.
Many prominent artists during the 1950s, including playwright Lillian
Hellman
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and singer and activist Paul Robeson
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opted to invoke the Fifth when called before the committee and asked
about their political affiliations.

The Fifth Amendment shielded hundreds
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of “unfriendly” witnesses from imprisonment, including artists,
teachers and federal workers. However, it did not save them from job
loss and blacklisting
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While they could avoid contempt citations by pleading the Fifth, they
could not erase the stain of perceived guilt. This legal approach
became so widespread that U.S. Sen. Joseph McCarthy
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the country’s leading anti-communist crusader, disparaged these
witnesses as “Fifth Amendment Communists
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and boasted of purging their ranks from the federal government.

[Three photos of a man in suit and tie.]
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Three portraits of Albert Einstein taken in Princeton, N.J., in March
1953. AP Photo
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From Fifth back to First

In 1953, the physicist Albert Einstein became instrumental in
revitalizing the force of the First Amendment
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rhetorical and legal tactic in the congressional hearings. Having fled
Germany after the Nazis came to power, Einstein took a position at
Princeton in 1933 and became an important voice in American politics.

Einstein’s philosophical battle against McCarthyism began with a
letter to a Brooklyn high school teacher
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named William Frauenglass.

In April of that year, Frauenglass was subpoenaed to appear before the
Senate Internal Security Subcommittee, “the Senate counterpart
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Un-American Activities Committee, to testify about his involvement in
an intercultural education seminar. After the hearing, in which
Frauenglass declined to speak about his political affiliations, he
risked potential termination from his position and wrote to Einstein
seeking support.

In his response, Einstein urged Frauenglass and all intellectuals to
enact a “revolutionary” form of complete “noncooperation
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with the committee.

While Einstein advised noncompliance, he also acknowledged the
potential risk
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“Every intellectual who is called before one of the committees ought
to refuse to testify, i.e., he must be prepared for jail and economic
ruin, in short, for the sacrifice of his personal welfare in the
interest of the cultural welfare of his country.”

Frauenglass shared his story with the press, and Einstein’s letter
was published in full
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in The New York Times on June 12, 1953. It was also quoted in local
papers around the country.

One week later, Frauenglass was fired from his job.

After learning about Einstein’s public position, McCarthy labeled
the Nobel laureate “an enemy of America
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didn’t stop Einstein’s campaign for freedom of expression. He
continued to encourage witnesses to rely on the First Amendment.

When the engineer Albert Shadowitz received a subpoena in 1953
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to appear before McCarthy’s Senate Permanent Subcommittee on
Investigations, to answer questions about alleged ties to the
Communist Party, he traveled to Einstein’s home to seek out the
physicist’s advice. After consulting with Einstein, Shadowitz opted
for the First Amendment over the Fifth Amendment.

On Dec. 16, 1953, Shadowitz informed the committee
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that he had received counsel from Einstein. He then voiced his
opposition to the hearing on the grounds of the First Amendment: “I
will refuse to answer any question which invades my rights to think as
I please or which violates my guarantees of free speech and
association.”

He was cited for contempt in August 1954 and indicted that November,
facing a potential year in prison and US$1,000 fine. As an indicator
of McCarthy’s diminishing power, the charge was thrown out in July
1955 by a federal judge.

[A Black man sits in front of a table with a microphone on it.]
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Singer Paul Robeson appears before the House Un-American Activities
Committee in Washington, D.C., in 1956. Bettmann Archive/Getty Images
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The triumph of dissent

Well-known public figures also began to turn away from the Fifth
Amendment as a legal tactic and to draw on the First Amendment.

In August 1955, when the folk musician Pete Seeger
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Activities Committee, he voiced his rejection of the Fifth Amendment
defense during the hearing. Seeger asserted that he wanted to use his
testimony to call into question the nature of the inquiry altogether.

Pleading the protection of the First Amendment, Seeger refused
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related to his “political beliefs” and instead interrogated the
committee’s right to ask such questions “under such compulsion as
this.”

When the playwright Arthur Miller
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was subpoenaed by the committee in 1956, he also refused to invoke the
Fifth. Both were cited for contempt. Seeger was sentenced to a year in
prison. Miller was given the option to pay a $500 dollar fine or spend
30 days in jail.

As Seeger and Miller fought their appeals in court, McCarthy’s
popularity continued to wane, and public sentiment began to shift.

Prompted by Einstein, the noncompliant witnesses in the 1950s reshaped
the public discussion, refocusing the conversation on the importance
of freedom of expression rather than the fears of imagined communist
infiltration.

Although the First Amendment failed to keep the Hollywood Ten out of
prison, it ultimately prevailed. Unlike the Hollywood Ten, both Miller
and Seeger won their appeals. Miller spent no time in prison and
Seeger only one day in jail. Miller’s conviction was reversed in
1958, Seeger’s in 1962. The Second Red Scare was over.

As the Second Red Scare shows, when free speech is under attack,
strategic compliance may be useful for individuals. However, bold and
courageous acts of dissent are critical for protecting First Amendment
rights for everyone.[The Conversation]

Jodie Childers
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Assistant Professor of English, _University of Virginia_
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This article is republished from The Conversation
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the original article
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* First Amendment
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* Free Speech
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* Red Scare
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* Joseph McCarthy
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* Hollywood Ten
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* Albert Einstein
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* Pete Seeger
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